Legal Executive Institute

CyberLife: Social Media, Right-of-Publicity and Consenting to Terms of Service

July 19, 2017

By Daniel B. Garrie

The past few years have seen a surge of activity in right-of-publicity litigation related to social media. Cases such as Fraley v. Facebook and Perkins v. LinkedIn addressed social media websites’ unauthorized use of user names and likenesses for commercial purposes and demonstrated how non-celebrities could successfully assert large-scale right-of-publicity claims.

There appears to be little future, however, for similar right-of-publicity claims as websites such as Facebook have amended their terms of service to include consent for commercial uses of names and likenesses. Social media users should therefore be aware of what they consent to by agreeing to these terms – because giving up some control over one’s likeness in commercial use may just be part of the bargain.

The right-of-publicity is, broadly speaking, the right of individuals to control the commercial use of their identities. What exactly constitutes one’s identity in this context varies from state to state, as right-of-publicity is a state law doctrine, but the generally protected elements are one’s name, image and likeness.

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